Reps. BAMBERG and ROSE proposes the following amendment (LC-287.SA0001H):

Amend the bill, as and if amended, by striking all after the enacting words and inserting:

SECTION 1. Section 16-17-500 of the S.C. Code is amended to read:

 Section 16-17-500. (A) It is unlawful for an individual to sell, furnish, give, distribute, purchase for, or provide a tobacco product to a minor person under the age of eighteen twenty-one years.
 (B) It is unlawful to sell a tobacco product or an alternative nicotine product to an individual who does not present, upon demand, proper proof of age. Failure to demand identification to verify an individual's age is not a defense to an action initiated pursuant to this subsection. Proof that is demanded, is shown, and reasonably is relied upon for the individual's proof of age is a defense to an action initiated pursuant to this subsection.
 (C) A person engaged in the sale of tobacco products made through the Internet or other remote sales methods shall perform an age verification through an independent, third-party age verification service that compares information available from public records to the personal information entered by the individual during the ordering process that establishes the individual is eighteen twenty-one years of age or older and shall use a method of mailing, shipping, or delivery that requires the signature of a person at least eighteen twenty-one years of age before a tobacco product will be released to the purchaser, unless the Internet or other remote sales methods employ the following protections to ensure age verification:
  (1) the customer creates an online profile or account with personal information including, but not limited to, name, address, social security information, and a valid phone number, and that personal information is verified through publicly available records; or
  (2) the customer is required to upload a copy of his government-issued identification in addition to a current photograph of the customer; and
  (3) delivery is made to the customer's name and address.
 (D) It is unlawful to sell a tobacco product or an alternative nicotine product through a vending machine unless the vending machine is located in an establishment:
  (1) which is open only to individuals who are eighteen twenty-one years of age or older; or
  (2) where the vending machine is under continuous control by the owner or licensee of the premises or an employee of the owner or licensee, can be operated only by activation by the owner, licensee, or employee before each purchase, and is not accessible to the public when the establishment is closed.
 (E)(1) An individual who knowingly violates a provision of subsections (A), (B), (C), (D), or (J) in person, by agent, or in any other way is guilty of a misdemeanor and, upon conviction, must be:
   (a) for a first offense, fined not less than two hundred dollars and not more than three hundred dollars;
   (b) for a second and subsequent offense, fined not less than four hundred dollars and not more than five hundred dollars, imprisoned for not more than thirty days, or both.
  (2) In lieu of the fine, the court may require an individual, at the expense of the tobacco retailer or tobacco retail establishment, to successfully complete a Department of Alcohol and Other Drug Abuse Services approved merchant tobacco enforcement education program.
  (3) A tobacco retailer who knowingly violates or permits an employee to violate a provision of subsections (A), (B), (C), (D), or (J) in the tobacco retail establishment is subject to an administrative penalty as follows:
   (a) for a first violation, issued a warning;
   (b) for a second violation within a thirty-six month period, fined not less than three hundred dollars;
   (c) for a third violation within a thirty-six month period, fined not less than six hundred dollars;
   (d) for a fourth and subsequent violation within a thirty-six month period, fined not less than one thousand two hundred dollars and the tobacco retailer is prohibited from selling or distributing tobacco products for a period of at least seven days and no greater than thirty days. For purposes of this subsection, a tobacco retailer that knowingly sells or distributes during the period that the tobacco retailer is prohibited from selling or distributing is subject to a fine of not more than two hundred dollars and is prohibited from selling or distributing tobacco products for an additional period of seven days; and
   (e) A tobacco retailer or tobacco retail establishment may request a contested case hearing for the fine or for the prohibition from selling or distributing tobacco products in front of the South Carolina Administrative Law Court, pursuant to the South Carolina Administrative Procedures Act, Section 1-23-310 et, seq.
  (4) In lieu of the fine and prohibition from selling or distributing tobacco products, the court may require the tobacco retailer or tobacco retail establishment's employees, at the expense of the tobacco retailer or tobacco retail establishment, to successfully complete a Department of Alcohol and Other Drug Services-approved merchant tobacco enforcement education program.
  (5) Failure to require identification for the purpose of verifying a person's age is prima facie evidence of a violation of this section.
  (6) Local law enforcement and the State Law Enforcement Division may enforce subsections (A), (B), (C), (D), (E), or (J). The Department of Revenue must administer the provisions of subsection (E)(3) and the State Law Enforcement Division may enforce subsection (E)(3).
  (7) A violation of subsection (A), (B), (C), (D), or (J) is prima facie evidence of a violation of subsection (E)(3). The Department of Revenue is authorized to present evidence of a violation of subsection (A), (B), (C), (D), or (J) to establish the violation of subsection (E)(3). Evidence of compliance with a merchant tobacco enforcement education program is an affirmative defense to subsection (E)(3)(a) and (b).
 (F)(1)(a) A minorperson under the age of eighteen twenty-one years must not present or offer proof of age that is false or fraudulent for the purpose of purchasing or possessing these products.
   (b) A minor person under the age of eighteen twenty-one years is prohibited from entering a tobacco retail establishment that has as its primary purpose the sale of tobacco products, unless the minor person is actively supervised and accompanied by an adult.
   (c) The provisions of this subsection do not apply to a minor person under the age of eighteen twenty-one who is recruited and authorized by a law enforcement agency to test an establishment's compliance with laws relating to the unlawful transfer of tobacco products. The testing must be conducted under the direct supervision of a law enforcement agency, and the law enforcement agency must have the person's parental consent of a parent or legal guardian of the minorif the person is under the age of eighteen.
  (2) A minor person under the age of twenty-one who knowingly misrepresents his age to purchase or attempt to purchase a tobacco product commits a noncriminal offense and is subject to a civil fine of twenty-five dollars.
  (3) In lieu of the civil fine, the court may require a minor person under the age of twenty-one to successfully complete a Department of Health and Environmental Control-approved smoking cessation or tobacco prevention program, a South Carolina Department of Alcohol and other Drug Abuse Services tobacco prevention program, or to perform not more than five hours of community service for a charitable institution.
  (4) A violation of this subsection is not a criminal or delinquent offense and no criminal or delinquent record may be maintained. A minor person under the age of twenty-one may not be taken into custody, arrested, placed in jail or in any other secure facility, committed to the custody of the Department of Juvenile Justice, or found to be in contempt of court for a violation of this subsection or for the failure to pay a fine, successfully complete a smoking cessation or tobacco prevention program, or perform community service.
  (5) A violation of this subsection is not grounds for denying, suspending, or revoking an individual's participation in a state college or university financial assistance program including, but not limited to, a Life Scholarship, a Palmetto Fellows Scholarship, or a need-based grant.
  (6) The uniform traffic ticket, established pursuant to Section 56-7-10, may be used by law enforcement officers for a violation of this subsection, including civil penalties and warnings. A violation of subsection (F) does not constitute a criminal offense. A law enforcement officer issuing a uniform traffic ticket pursuant to this subsection must immediately seize the tobacco product.
 (G) This section does not apply to the possession of a tobacco product by a minor person under the age of twenty-one working within the course and scope of his duties as an employee or participating within the course and scope of an authorized inspection or compliance check.
 (H) Jurisdiction to hear a violation of this section is vested exclusively in the municipal court and the magistrates court. A hearing pursuant to subsection (F) must be placed on the municipal or magistrates court's appropriate docket for traffic violations, and not on the court's docket for civil matters. For the purposes of contesting a tobacco retailer being fined or prohibited from selling or distributing tobacco products under subsection (E)(3), the jurisdiction is vested in the South Carolina Administrative Law Court.
 (I) A retail establishment must train all tobacco retail sales employees regarding the unlawful distribution of tobacco products to minorspersons under the age of twenty-one.
 (J)(1) A tobacco retail establishment that has as its primary purpose the sale of tobacco products must prohibit minors persons under the age of eighteen twenty-one years from entering the tobacco retail establishment, unless the minor person under the age of twenty-one is actively supervised and accompanied by an adult, and shall determine whether a person is at least eighteen twenty-one years by requiring proper proof of age in accordance with subsection (B), prior to the sale of a tobacco product.
  (2) A tobacco retail establishment described in item (1) must conspicuously post on all entrances to the establishment the following:
   (a) a sign in boldface type that states "NOTICE: It is unlawful for a person under eighteen twenty-one years of age to enter this store, unless the minor person under the age of twenty-one is actively supervised and accompanied by an adult. Age will be verified prior to sale.";
   (b) a sign printed in letters and numbers at least one-half inch high that displays a toll free number for assistance to callers in quitting smoking, as determined by the Department of Health and Environmental Control.
  (3) For purposes of this section, whether a tobacco retail establishment has as its primary purpose the sale of tobacco products must be based on the totality of the circumstances. Facts that must be considered, but not be limited to, are the tobacco retail establishment's business filings, business name and signage, marketing and other advertisements, and the percentage of revenue and inventory directly related to the sale of tobacco products.
 (K) Notwithstanding any other provision of law, a violation of this section does not violate the terms and conditions of an establishment's beer and wine permit and is not grounds for revocation or suspension of a beer and wine permit.

SECTION 2. Section 16-17-502 of the S.C. Code is amended to read:

 Section 16-17-502. (A) It is unlawful for a person to distribute a tobacco product sample to a person under the age of eighteen twenty-one years.
 (B) A person engaged in sampling shall demand proof of age from a prospective recipient if an ordinary person would conclude on the basis of appearance that the prospective recipient may be under the age of eighteen twenty-one years.
 (C) A person violating this section is subject to the penalties set forth in Section 16-17-500(E).
 (D) A tobacco retail establishment violating this section is subject to administrative penalties as provided in Section 16-17-500(E)(3).

SECTION 3. Section 16-17-503(A) of the S.C. Code is amended to read:

 (A) The State Law Enforcement Division may conduct unannounced compliance checks for violations of Sections 16-17-500, 16-17-502, and 16-17-506. A person under the age of eighteen twenty-one may be recruited and authorized by the State Law Enforcement Division to test the tobacco retail establishment's compliance with Sections 16-17-500, 16-17 502, and 16-17-506. The testing must be under direct supervision of a law enforcement agency and with the consent of the person's parent or guardian. The State Law Enforcement Division must notify the Department of Revenue of violations under Section 16-17-500(E)(3). The results of compliance checks resulting in a tobacco retailer being prohibited from selling or distributing tobacco products must be published by the Department of Revenue annually and made available to the public upon request. Penalties collected pursuant to Sections 16-17-500, 16-17-502 and 16-17-506 must be used to offset the costs of enforcement.

SECTION 4. Chapter 95, Title 44 of the S.C. Code is amended by adding:

Article 65

ENDS Products Advertising, Marketing, and Packaging Restrictions

 Section 44-95-65. (A) As used in this article:
  (1) "ENDS product" means an electronic nicotine delivery system intended for eventual retail sale in this State that is a non-combustible product that employs a heating element, power source, electronic circuit, or other electronic, chemical, or mechanical means, regardless of shape or size to produce vapor from nicotine in a solution. ENDS product include a consumable nicotine liquid solution suitable for use in an electronic nicotine delivery system, whether sold with the ENDS product or separately, but does not include any product regulated as a drug or device under Chapter V of the federal Food, Drug, and Cosmetic Act.
  (2) "Advertise" means the publication or dissemination of an advertisement.
  (3) "Advertisement" includes any written or verbal statement, illustration, or depiction which is calculated to induce sales of ENDS products, including any written, printed, graphic, or other material, billboard sign, or other outdoor display, public transit card, other periodical literature, publication, in a radio or television broadcast, or in any other media.
  (4) "Marketing" means any act or process of promoting or selling of ENDS products including, but not limited to, sponsorship of sporting events, and promotion of products specifically designed to appeal to certain demographics.
  (5) "Minor" means an individual under the age of eighteen years of age.
  (6) "Packaging" means any receptacle that contains a ENDS product.
 (B) No manufacturer, distributor, or retailer of ENDS products may sell, offer for sale, advertise, or otherwise distribute ENDS products that:
  (1) uses, in the labeling of the product, its packaging, its advertisement, or in its marketing materials:
   (a) the terms "candy", "candies", or variants in spelling;
   (b) the terms "bubble gum", "cotton candy", "gummy bear", "lollipop", or other variants of these words;
   (c) the terms "cake", "cupcake", "pie" or any other variation of these words;
   (d) the terms "ice cream," "sherbert," "popsicle," "bomb pop," or any other variation of these words.
  (2) uses, in the labeling or design of the product, its packaging, its advertisement, or in its marketing materials, images of or references to cartoons, cartoon characters, superheroes, television shows, video games and movies, or other similar characters or references, that have been commonly used to market products to minors;
  (3) uses, in the labeling or design of the product, its packaging, its advertisement, or in its marketing materials, trade dress, trademarks, or other related imagery that imitate or replicate trade dress, trademarks, or other imagery of food brands or products that have been commonly marketed to minors;
  (4) uses, in the labeling or design of the product, or its packaging, or its marketing materials, trade dress, trademarks, or other related imagery that imitate or replicate trade dress, trademarks, or other imagery of school supplies.
 (C) A manufacturer, distributor, or retailer of ENDS products shall not advertise or market any ENDS except in the following manner:
  (1) any advertisement placed in or on broadcast or cable television, radio, print, and digital communications, shall only be made where at least eighty-five percent of the intended audience is reasonably expected to be eighteen years of age or older, as determined by reliable, up-to-date audience composition demographic data or event organizer restrictions;
  (2) advertisements may not be materially false or untrue and any statement contained therein must be consistent with the ENDS product's labeling;
  (3) advertisements may not contain any health or therapeutic claims; and
  (4) advertisements on billboard signs must not be within 1,000 feet of a primary or secondary school, playground, or youth center.
 (D). If a manufacturer, distributor, or retailer of ENDS violates subsections (B) or (C), the manufacturer, distributor, or retailer is subject to a civil penalty of:
  (1) not more than five hundred dollars for a first violation;
  (2) at least seven hundred fifty dollars but not more than one thousand dollars for a second violation within a thirty-six-month period;
  (3) at least one thousand dollars but not more than one thousand five hundred dollars for a third violation within a thirty-six-month period; or
  (4) at least one thousand five hundred dollars but not more than three thousand dollars for a fourth or any subsequent violation within a thirty-six-month period.
 (E)The Department of Revenue may promulgate regulations for the implementation and enforcement of this section.

SECTION 5. If any section, subsection, paragraph, subparagraph, sentence, clause, phrase, or word of this act is for any reason held to be unconstitutional or invalid, such holding shall not affect the constitutionality or validity of the remaining portions of this act, the General Assembly hereby declaring that it would have passed this act, and each and every section, subsection, paragraph, subparagraph, sentence, clause, phrase, and word thereof, irrespective of the fact that any one or more other sections, subsections, paragraphs, subparagraphs, sentences, clauses, phrases, or words hereof may be declared to be unconstitutional, invalid, or otherwise ineffective.

SECTION 6. This act takes effect ninety days after approval by the Governor.

Renumber sections to conform.

Amend title to conform.